Download View decision - Western Australian Industrial Relations Commission

2017 WAIRC 00241
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
CITATION
:
2017 WAIRC 00241
CORAM
:
COMMISSIONER D J MATTHEWS
HEARD
:
THURSDAY, 13 APRIL 2017
DELIVERED
:
TUESDAY, 2 MAY 2017
FILE NO.
:
C 10 OF 2017
BETWEEN
:
THE STATE SCHOOL TEACHERS' UNION OF W.A.
(INCORPORATED)
Applicant
AND
THE DIRECTOR GENERAL, DEPARTMENT OF EDUCATION
Respondent
CatchWords
:
Applicant's member dismissed by respondent - Refusal to re-employ
- Application for interim order for re-employment - Consideration of
whether interim order for re-employment within power - Principles
applied - Application dismissed
Legislation
:
Criminal Code
Industrial Relations Act 1979
Labour Relations Reform Act 2002
Working with Children (Criminal Record Checking) Act 2004
Result
:
Application for interim order dismissed
Representation:
Applicant
Respondent
:
:
Mr M Amati
Mr N van Hattem of counsel
:
State Solicitor’s Office
Solicitors:
Respondent
Cases referred to in reasons:
BHP Billiton Iron Ore Pty Ltd v CFMEU [2006] WASCA 49
2017 WAIRC 00241
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105
Cases also cited:
Brett v Sharyn O'Neill, Director General, Department of Education [2015] WASCA 66
Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers'
Union (2003) 83 WAIG 3314
RGC Mineral Sands Ltd & Anor v Construction, Mining, Energy, Timberyards, Sawmills,
Woodworkers Union of Australia WA Branch and Ors [2000] WASCA 162
The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous,
WA Branch and Anna Pineira trading as Aunty Joan's Child Care Centre (1990) 70 WAIG 2126
The State School Teachers' Union of W.A. (Incorporated) v Director General, Department of
Education (2014) 94 WAIG 1469
The State School Teachers' Union of WA (Incorporated) v The Director General, Department of
Education (2016) 96 WAIG 1
The Undercliffe Nursing Home v. The Federated Miscellaneous Workers' Union of Australia, W.A.
Branch 65 WAIG 385
2017 WAIRC 00241
Reasons for Decision
1
2
3
4
The applicant’s member was a teacher employed by the respondent. In November 2016 the
respondent became aware that the applicant’s member had been issued with an interim
negative notice under the Working with Children (Criminal Record Checking) Act 2004. It is
unlawful to employ a person in child-related employment, such as teaching, if an interim
negative notice has been issued to a person and the notice is current. The applicant’s member
was informed of this by the respondent and his employment ended.
The interim negative notice did not become final and, in fact, the applicant’s member was,
once the matter was considered by the relevant authorities, issued with what is called an
“assessment notice” which allowed him to be employed in child-related employment.
The applicant then started to make representations to the respondent that its member be reemployed as a teacher. These were unsuccessful. The respondent’s position was that it did not
wish to re-employ the applicant’s member because he was facing a charge of common assault
under the Criminal Code (that event being the one that had led to the interim negative notice).
In the face of the respondent’s refusal to re-employ its member the applicant brought an
application to the Western Australian Industrial Relations Commission seeking an order for the
re-employment of its member. It seeks an interim order that the respondent re-employ its
member pending the outcome of its substantive application. The application for the interim
order is the subject of this decision.
5
The applicant points to sections 44(6)(ba)(ii) and (bb)(i) Industrial Relations Act 1979 as
sources of power under which I might make the interim order sought.
6
In relation to section 44(6)(ba)(ii) Industrial Relations Act 1979 the applicant says that if its
member is gainfully employed when the substantive application is heard he will be in a better
frame of mind than if not and that this will better “enable arbitration to resolve the matter in
question.” I reject that argument as being based on a vague and unconvincing contention.
7
I find myself unable to hold the opinion that an interim order would make a difference to the
ability of the Western Australian Industrial Relations Commission to resolve the matter in
question at arbitration. The applicant is a union and it will represent its member at the
arbitration. It will be responsible for preparation for the hearing. The facts are not complex.
There is no evidence that its member will not be able to instruct it properly or that his state of
mind will affect the preparation and presentation of the case, let alone that, if there are such
complications expected, the interim order would resolve them. The contention is altogether too
remote and tenuous.
8
That leave section 44(6)(bb)(i) Industrial Relations Act 1979.
9
The subparagraph provides:
The Commission may, at or in relation to a conference under this section…with respect to industrial
matters give any direction or make any order or declaration which the Commission is otherwise
authorised to give or make under this Act.
10
This is clearly, by the subparagraph’s use of the words “otherwise authorised to give or make
under this Act”, not a source of original power. The subparagraph simply makes it clear that
the Western Australian Industrial Relations Commission may exercise all of its power in
relation to industrial matters under the Industrial Relations Act 1979 at a conference under
section 44 Industrial Relations Act 1979.
2017 WAIRC 00241
11
12
13
The respondent’s refusal to employ a person is an industrial matter (see “(c)” of the definition
of “industrial matter” in section 7 Industrial Relations Act 1979) and it has long been accepted
that section 23(1) Industrial Relations Act 1979, although it does not expressly say as much,
gives the Western Australian Industrial Relations Commission the power to order an employer
to employ a person it is refusing to employ (see for instance BHP Billiton Iron Ore Pty Ltd v
CFMEU [2006] WASCA 49).
A question which exercises my mind is whether I may, under section 44(6)(bb)(i) Industrial
Relations Act 1979, make an interim order for employment of a person whom an employer is
refusing to employ. While the Commission is clearly “otherwise authorised” to make an order
for employment in the circumstances of this matter, the question is whether it is “otherwise
authorised” to make an order for employment which is of an interim nature or which is subject
to further review or which depends for its continuation upon the happening of some other
event?
The respondent says the Western Australian Industrial Relations Commission is not “otherwise
authorised” to make such an order. The respondent says this for the following reasons:
(1) section 44(6)(bb)(ii) Industrial Relations Act 1979 gives the Western Australian
Industrial Relations Commission a specific power to make an interim order in certain
circumstances (not present here) and it can be implied from this that section
44(6)(bb)(i) Industrial Relations Act 1979 was not intended to include a power to make
interim orders;
(2) the explanatory memorandum for the Labour Relations Reform Act 2002, which
introduced section 44(6)(bb)(ii) Industrial Relations Act 1979, stated at [145] that the
new subparagraph had the effect that “interim orders will be available to the
Commission but will be limited to those unfair dismissal cases heard through the
provisions of section 44”; and
(3) a power to order employment substantively and a power to order employment on an
interim basis are discrete and while the Western Australian Industrial Relations
Commission has power to order employment on a permanent and substantive basis
there is no power under the Industrial Relations Act 1979 to make an interim order.
14
I remain in two minds about whether the Western Australian Industrial Relations Commission
has the power to make an interim order for employment in a refusal to employ case.
15
Section 44(6)(bb)(ii) Industrial Relations Act 1979 does provide that an interim order may be
made in an unfair dismissal case. If the Western Australian Industrial Relations Commission
was “otherwise authorised” to make such an order it is arguable there would be no need for
section 44(6)(bb)(ii) Industrial Relations Act 1979 with the attendant argument being that the
Western Australian Industrial Relations Commission must not be “otherwise authorised” to
make an interim order in the circumstances of this case.
16
But section 44(6)(bb)(ii) Industrial Relations Act 1979 might be interpreted as providing mere
clarification or as importing a different test (“the Commission thinks appropriate”) for the
exercise of the power to make an interim order in the circumstances to which the subparagraph
applies.
17
It might also be noted that the subparagraph is expressed to not limit section 44(6)(bb)(i)
Industrial Relations Act 1979 thus perhaps indicating that it is not to be read as having any
particular effect on the proper construction of section 44(6)(bb)(i) Industrial Relations Act
2017 WAIRC 00241
1979. (see for instance Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141
CLR 672 at 679 per Mason J)
18
The paragraph of the explanatory memorandum cited by the respondent is of clear interest but
has not been commented upon by the applicant and there is, of course, much that can be
debated in relation to the use of such materials in the interpretation of legislation.
19
The concept of there being a power under section 23(1) Industrial Relations Act 1979 to order
employment in a refusal to employ case, but for such an order to be time limited or subject to
the occurrence or non-occurrence of a particular event, seems odd. To order employment
subject to any further order of the Western Australian Industrial Relations Commission is not,
at first blush, the kind of order the Western Australian Industrial Relations Commission should
or can make under section 23(1) Industrial Relations Act 1979 (it being remembered that under
section 44(6)(bb)(i) I am looking for whether the Commission is “otherwise authorised” under
the Industrial Relations Act 1979 to make the order sought) as it may not bring finality to the
dispute.
20
Then again the Western Australian Industrial Relations Commission is not the kind of
jurisdiction where the legislative powers to hear and determine industrial matters should be
interpreted in a restrictive way.
21
If I had been required to come to a conclusion on the materials and argument available I would
have done so but given that, even if I found I had the power the applicant contends I do, I
would not have exercised it in its member’s favour, I am content to leave the question to
another day when the Commission has the benefit of fuller argument on the matter.
22
Assuming I had a power to order interim re-employment under section 44(6)(bb)(i) Industrial
Relations Act 1979 the application of the principles I find relevant could not possibly result in
me exercising it.
23
The principles to be applied, as for any application for an interim order where none are set out
by legislation, is whether the applicant has made out a prima facie case and whether the
balance of convenience favours the grant of the order.
24
This application is one for a “mandatory injunction” rather than a “prohibitory injunction.” I
accept that this makes no difference to the principles to be applied (see Mineralogy Pty Ltd v
Sino Iron Pty Ltd [2016] WASCA 105) although I note also the passage from a textbook
quoted with approval at [85] in the case just cited that “in the application of the normal tests,
often, though not always, the fact that the relief sought is mandatory will tilt the balance of
convenience in the [respondent’s] favour.”
25
Also I note the questions of a sufficient prima facie case and whether the balance of
convenience favours the grant of relief are related and not independent questions.
26
In relation to whether the applicant has a prima facie case I accept that the applicant does not
have to show that it is more probable than not that it will succeed at arbitration. However, the
strength of the probability required does depend upon the practical consequences likely to flow
from the order the applicant seeks.
27
In this case an order for the applicant would result in the respondent being forced to employ as
a teacher a person who is facing a criminal charge arising out of an incident involving a
student. It is possible that by the time the arbitration occurs that the applicant’s member may
have been found not guilty of the charge and that, if the applicant succeeds, I will not be
ordering the employment of a person who is facing such a charge but at the moment the
2017 WAIRC 00241
practical consequence of the order sought will be as set out above. Even allowing for the
presumption of innocence that would be an undesirable outcome for the respondent in its
attempts to discharge, and be seen to discharge, its duties to students and the wider community.
28
29
Although the applicant’s member is obviously suffering the deleterious financial and other
effects of having lost his job, and some sympathy may be felt for him given that he lost his job
because of an interim negative notice that did not become final against him, as things stand it is
my view that this does not, in the scheme of things, outweigh the damage to the standing of the
respondent in its attempts to discharge, and be seen to discharge, its responsibility to provide
children with a safe and credible environment for care and learning. The balance of
convenience is resoundingly against the applicant’s member.
The circumstance that has led to the respondent’s refusal to employ him, that he faces a
criminal charge arising out of his conduct toward a student, remains and the respondent, and
the community which it serves, would be rightfully concerned about such a person being
employed as a teacher even once the presumption of innocence is understood and given full
weight.
30
Given the strength of the probability of success required, which I find to be higher than what
would normally be required and not present here, and the factors relevant to the balance of
convenience set out above I would, even if I had the power to grant it, have no hesitation in
deciding not to exercise it in favour of the applicant’s member.
31
The application for an interim order is dismissed.